OVERRIDING MANDATORY RULES AND PUBLIC POLICY

Abstract

Overriding mandatory rules represent norms that are directly applied to the legal relationship with the foreign element. These are self-limiting norms, which exclude the application of collision rules, and they, in advance, define the field of their own application. These norms have a stronger legal force than the norms of public order. When we talk about the application of the overriding mandatory rules, we are talking, first of all, about the norms of the state in which the legal relationship is resolved, which means that in their application the lex fori is the starting point. However, there is also the question of a broader understanding of these norms, that is, of their application when they are an integral part of the legal order of the state, whose law is determined as applicable, that is, of the state that is closely connecting to the legal relationship in question. Considering the possibility of applying these norms, which are an integral part of the legal order of another state, the question of their extraterritoriality arises. The paper pays attention to the regulation of these norms in the regulations of the Republic of Serbia and
some states, as well as in EU acts. Those acts are Regulation Rome I, which regulates the applicable law to contractual obligations, and Regulation Rome II which regulates the applicable law to non-contractual obligations. Particular attention is paid to distinguishing these norms from the institute of public policy. In this regard, the paper defines the difference between public policy and public interest. The main problem in regulating of the overriding mandatory rules is related to the fact that they are not determined in advance and that their application depends on the court or other authority that makes the decision.